FISA and the NSA Surveillance Program Posted by: Dale Franks
on Saturday, January 20, 2007
Lance, over at SHC has requested my input on the Administration's climb-down on the NSA surveillance program. He is wondering what I think after more reflection, and the suggestion by Orin Kerr that the Administration turned the program over to the FISC due to the newly authorized use of anticipatory warrants.
I think that, for my part, the problem is that the Bush Administration has been arguing:
1) Such searches were absolutely vital to national security. 2) That the President has the inherent wartime authority to conduct such warrantless searches, because it is an inseparable part of his warmaking powers, which kicked in when the AUMF was passed. 3) No statutory limitation, such as FISA, can repeal that inherent authority. 4) The FISC itself could not be used, because its procedures for obtaining warrants was unsuitable. 5) In any event, FISA doesn't apply because there is a generalized power to conduct warrantless searches on communications leaving and entering the country, much in the same way as the Customs Service has the power to conduct—and routinely does conduct—warrantless searches on persons or property entering or leaving the country.
Now, even if we assume that Mr. Kerr is correct, and the FISC has revised its procedure to allow the use of anticipatory warrants, and the speed with which they can be obtained has been increased, the fact that item 4 above has now changed does not approach the other arguments the Administration put forth. The fact that the Administration has abandoned the other claims indicates to me that they were never sincere in those arguments. They were simply window dressing to disguise the Administration's unhappiness with the FISC procedures.
If the central concern of the Administration was the FISC procedure, the appropriate venue for solving that problem was to go Congress, detail what relevant amendments needed to be made to FISA, and let Congress pass them. After all, it wasn's as if a Republican Congress would reject the president's proposals. Rather than doing that, however, the Administration instituted a secret surveillance program, then, when its existence was uncovered, proposed a novel constitutional construct—although, I hasten to add, through what were at least colorable arguments—to justify it, and defended it on the basis of that construct for many months.
Now, it turns out that construct was a sham, and once the FISC decided that the use of anticipatory warrants—or whatever changes were made at FISC; we don't know, really—that those claims could be abandoned. Now, the FISC is perfectly suited for running the program, and FISA does not, after all impose an unconstitutional burden on the inherent powers of the executive.
Now, that's all well and good, but it does mean that in the future, the Administration cannot advance those arguments again without serious credibility problems, even if those arguments are perfectly appropriate. Moreover, if it turns out that the FISC cannot or will not play ball with such warrants in a timely manner, the Administration cannot fall back on those arguments again. They have been publicly abandoned, and they can't be resurrected for convenience, not only in this context but in almost any other, even if they happen to be true. Who, after all will beleive it? The administration has torpedoed a signifigant portion of their credibility on national security matters.
Well, depending on who is doing the discussing, the Congress has a legal requirement AND right to do so. The Times has neither.
Oh, and McQ, do you really think the court would have been so willing to amend its’ procedures if Bush hadn’t made it clear that if they didn’t it wasn’t going to stop him from going ahead. Just as in the military, for a court to hand down an order it knows won’t be obeyed is something to be avoided.
And all those other arguments still apply. The fact that once Bush could get the results he needed while allowing the FISA fig-leaf those other arguments weren’t necessary is what’s important.
Now, that’s all well and good, but it does mean that in the future, the Administration cannot advance those arguments again without serious credibility problems, even if those arguments are perfectly appropriate. Moreover, if it turns out that the FISC cannot or will not play ball with such warrants in a timely manner, the Administration cannot fall back on those arguments again. They have been publicly abandoned, and they can’t be resurrected for convenience, not only in this context but in almost any other, even if they happen to be true.
Does not follow.
Look, as far as I can tell, this administration has had "credibility problems" from day one with certain portions of the media and electorate. If the administration had repudiated its position, then of course they wouldn’t be able to bring it back. They haven’t, have they?
I really, really hate the writhing arguments of Gonzalez. It reduces everything to a smoke and mirrors plane. I’m wondering how much this switch had to do with the court cases bubbling up through the system. This makes those cases going after a cease and desist judgment, with no demand for damages, just go away.